Exhibit 4
COMMON STOCK PURCHASE WARRANT AGREEMENT
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This Common Stock Purchase Warrant Agreement is made as of
______________________, 2000, by and between Ocean West Holding Corporation and
Reliance Trust Company (the "Warrant Agent").
WHEREAS, the Company has determined to issue and deliver Common Stock
Purchase Warrants (the "Warrants") entitling the holders of the Warrants to
purchase an aggregate of 1,000,000 Common Shares of the Company;
WHEREAS, the Company desires to provide for the form and provisions of the
Warrants, the terms upon which they will be issued and may be exercised, and the
respective rights, limitations and immunities of the Company, the Warrant Agent
and the holders of the Warrants; and
WHEREAS, all acts and things necessary have been done and performed to make
the Warrant, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided in this Agreement, the valid, binding
and legal obligation of the Company, and to authorize the execution and
delivery of this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
the parties hereto agree as follows:
Article I
Execution and Countersignature of Warrants
1.01. Execution and Countersignature of Warrants.
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(a) Each Warrant, whenever issued, shall be dated
________________________, shall be substantially in the form of Exhibit A
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attached hereto and incorporated hereby, and shall be signed by, or bear the
facsimile signature of, the President or a Vice President and of the Secretary
or an Assistant Secretary of the Company. If any officer whose facsimile
signature has been placed upon any Warrant ceases to be that officer before the
Warrant is issued, the Warrant may be issued with the same effect as if the
officer had not ceased to be that officer on the date of issuance.
(b) No Warrant may be exercised until it has been countersigned
by the Warrant Agent. The Warrant Agent shall countersign a Warrant only if:
(i) the Warrant is to be issued in exchange or
substitution for one or more previously countersigned Warrants, as
provided in this Agreement, or
(ii) the Company instructs the Warrant Agent to do so.
(c) Unless and until countersigned by the Warrant Agent pursuant
to this Agreement, a Warrant is invalid and of no effect.
Article II
Warrant Price, Duration and Exercise of Warrants
2.01. Warrant Price. Each Warrant, when countersigned by the Warrant
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Agent, shall entitle the holder of the Warrant, subject to the provisions of
this Agreement, to purchase from the Company the number of Common Shares stated
in the Warrant at the price of eight dollars ($8.00) per share, subject to the
adjustments provided in Article III of this Agreement. The Warrant Price as
used herein shall refer to the price per share at which Common Shares may be
purchased at the time a Warrant is exercised.
2.02. Duration of Warrants. Warrants may be exercised only on or
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before a date that is eighteen (18) months after the date of the Warrants (the
"Expiration Date"). Notwithstanding the foregoing, if notice has been given as
provided in Article III hereof in connection with the liquidation, dissolution
or winding up of the Company, the Warrants shall expire at the close of business
on the third full business day before the date specified in the notice as the
record date for determining holders of stock entitled to receive any
distribution upon the liquidation, dissolution or winding up; provided, however,
that such date is at least five (5) business days after the date of the notice.
2.03. Exercise of Warrants.
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(a) A Warrant, when countersigned by the Warrant Agent, may be
exercised by surrendering it at the office of the Warrant Agent in Atlanta,
Georgia, or at the office of its successor as warrant agent, prior to the close
of business of the Warrant Agent on the Expiration Date or such earlier date as
may be applicable with the exercise form set forth in the Warrant duly completed
and executed, and by paying in full, in lawful money of the United States, the
Warrant Price for each full Common Share as to which the Warrant is exercised,
and any applicable taxes. Notwithstanding the foregoing, the Company is only
required to use reasonable efforts which will permit the purchase and sale of
the Common Shares underlying the Warrants and is not required to qualify the
Warrants or the Common Shares underlying the Warrants in any state.
(b) As soon as practicable after the exercise of any Warrant, the
Company shall issue to, or upon the order of, the holder or holders of the
Warrant, in whatever name or names the Warrant holder may direct, a certificate
or certificates for the number of full Common Shares to which the holder or
holders are entitled, registered in the name or names specified by the holder or
holders, and, if the Warrant is not exercised in full (except with respect to a
remaining fraction of a share), a new countersigned Warrant for the number of
shares (including fractional shares) as to which the Warrant has not been
exercised. All Warrants surrendered shall be canceled by the Company.
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(c) If the same holder of one or more Warrants exercises the
purchase rights under the Warrants in the same transaction in a manner that
leaves the right to purchase a fraction of a share unexercised, the Company
shall pay a cash adjustment with respect to that final fraction in an amount
equal to the same fraction of the current market price of one Common Share on
the business day that next precedes the day of exercise reduced by the same
fraction of the Warrant Price of one Common Share on that day. For this purpose,
the current market price shall be the price of one Common Share on the principal
stock exchange on which the Common Shares is traded on the next preceding
business day, or, if no sales take place on that day or if the Common Shares are
not then listed on a stock exchange, the average of the reported bid and asked
prices on that day in the over-the-counter market.
(d) All Common Shares issued upon the exercise of a Warrant shall
be duly and validly issued, fully paid and nonassessable, and the Company shall
pay all taxes in connection with the issuance of such shares. The Company shall
not be required to pay any tax imposed in connection with any transfer involved
in the issuance of a certificate for Common Shares in any name other than that
of the holder or holders of the Warrant surrendered in connection with the
purchase of the shares. In this case the Company shall not be required to issue
or deliver any stock certificate until the tax has been paid.
(e) Each person in whose name any certificate for Common Shares
is issued shall be deemed to have become the holder of record of the shares on
the date on which the Warrant was surrendered and payment of the Warrant Price
and any applicable taxes was made, irrespective of the date of delivery of the
certificate, except that, if the date of surrender and payment is a date when
the stock transfer books of the Company are closed, a person shall be deemed to
have become the holder of shares at the close of business on the next succeeding
date on which the stock transfer books are open. Except as otherwise provided in
Article III, each person holding any shares received upon exercise of Warrants
shall be entitled to receive only dividends or distributions which are payable
to holders of record on or after the date on which the person is deemed to
become the holder of record of such shares.
Article III
Adjustments
3.01. Stock Dividends - Split-Ups. If after the date of this
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Agreement, and subject to the provisions of Section 3.07 hereof, the number of
outstanding Common Shares of the Company is increased by a stock dividend
payable in Common Shares or by a split-up of Common Shares, then, on the day
following the date fixed for the determination of holders of Common Shares
entitled to receive the stock dividend or split-up, the number of shares
issuable on exercise of each Warrant shall be increased in proportion to the
increase in outstanding shares and the then applicable Warrant Price shall be
correspondingly decreased.
3.02. Aggregation of Shares. If after the date of this Agreement, and
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subject to the provisions of Section 3.07 hereof, the number of outstanding
Common Shares of the Company is
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decreased by a combination or reclassification of Common Shares, then, after the
effective date of the combination or reclassification, the number of Common
Shares issuable on exercise of each Warrant shall be decreased in proportion to
the decrease in outstanding Common Shares and the then applicable Warrant Price
shall be correspondingly increased.
3.03. Special Stock Dividends. If after the date of this Agreement,
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and subject to the provisions of Section 3.07 hereof, shares of any class of
stock of the Company (other than Common Shares) are issued by way of a stock
dividend on outstanding Common Shares, then, commencing with the day following
the date fixed for the determination of holders of Common Shares entitled to
receive the stock dividend, in addition to any Common Share receivable upon
exercise of the Warrants, the Warrant holders upon exercise of the Warrants
shall be entitled to receive, as nearly as practicable, the same number of
shares of dividend stock, plus any shares issued upon any subsequent change,
replacement, subdivision or combination of the stock dividend, to which the
holders would have been entitled if their Warrants would have been exercised
immediately prior to the stock dividend. No adjustment in the Warrant Price
shall be made merely by virtue of the happening of any event specified in this
Section 3.03.
3.04. Reorganization, Etc. If after the date of this Agreement any
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capital reorganization or reclassification of the Common Shares of the Company,
or consolidation or merger of the Company with another corporation, or sale of
all or substantially all of its assets to another corporation is effective,
then, as a condition of the reorganization, reclassification, consolidation,
merger or sale, lawful and fair provision shall be made whereby the Warrant
holders after the transaction shall have the right to purchase and receive, upon
the basis and upon the terms and conditions specified in the Warrants and in
lieu of the Common Shares of the Company purchasable and receivable immediately
prior to the transaction upon the exercise of the rights represented by the
Warrants, the shares of stock, securities or assets that may be issued or
payable with respect to or in exchange for a number of outstanding Common Shares
equal to the number of Common Shares purchasable and receivable immediately
prior to the transaction upon the exercise of the rights represented by the
Warrants if the reorganization, reclassification, consolidation, merger or sale
had not taken place. Appropriate provisions shall be made in connection with a
reorganization, reclassification, consolidation, merger or sale with respect to
the rights and interests of the Warrant holders to the end that the provision of
this Agreement (including, without limitation, provisions for adjustments of the
Warrant Price and of the number of shares purchasable upon exercise of the
Warrants) shall immediately after the transaction be applicable as nearly as
possible to any shares of stock, securities or assets deliverable immediately
after the transaction upon the exercise of the Warrants. The Company shall not
effect any consolidation, merger or sale unless, prior to the consummation of
the transaction, the successor corporation (if other than the Company) resulting
from the consolidation or merger, or the corporation purchasing the assets,
assumes by written instrument executed and delivered to the Warrant Agent the
obligation to deliver to the Warrant holders the shares of stock, securities or
assets in accordance with the foregoing provisions that the holders may be
entitled to purchase.
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3.05. Notice of Change in Warrant. Upon any adjustment of the Warrant
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Price or the number of shares issuable on exercise of a Warrant, then and in
each case the Company shall give written notice of the adjustment to the Warrant
Agent. The notice shall state the Warrant Price resulting from the adjustment
and the increase or decrease, if any, in the number of shares purchasable at
that price upon exercise of a Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which the calculation is based. The
Company shall mail or cause to be mailed to each holder of Warrants at the
address registered with the Company, a notice setting forth such change or
adjustment. Failure to file a statement or to give notice, or any defect in a
statement or notice, shall not affect the legality or validity of the changes or
adjustments.
3.06. Other Notices. In case at any time:
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(a) the Company pays any dividends payable in stock upon its
Common Shares or makes any distributions (other than regular cash dividends) to
the holders of its Common Shares;
(b) the Company offers for subscription pro rata to the holders
of its Common Shares any additional shares of stock of any class or any other
rights;
(c) there is a capital reorganization, a classification of the
capital stock of the Company or a consolidation or merger of the Company with,
or a sale of all or substantially all of its assets to, another corporation; or
(d) there is a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of these cases, the Company shall give written notice
in the manner set forth in Section 3.05 of this Agreement of the date on which
(i) the books of the Company close or a record is taken for the dividend,
distribution or subscription rights, or (ii) the reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up takes place. The notice also shall specify the date as of which the
holders of record of Common Shares shall participate in dividend, distribution
or subscription rights, or shall be entitled to exchange their Common Shares for
securities or other property deliverable upon the reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up. The notice shall be given and published at least twenty (20) days
prior to the transaction in question and not less than 20 days prior to the
record date or the date on which the Company's transfer books are closed with
respect to the transaction. Failure to give or publish the notice, or any
defect in the notice, shall not affect the legality or validity of any
transaction covered or to be covered in the notice.
3.07. Limitation on Fractions. Notwithstanding anything in Sections
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3.01 or 3.02 hereof to the contrary, cumulative adjustments in the number of
shares issuable upon exercise of Warrants shall be made only to the nearest
multiple of one-tenth (1/10) of a share, i.e., fractions of less than five-
hundredths (5/100) of a share shall be disregarded and fractions of five-
hundredths (5/100) of a share or more shall be treated as being one-tenth (1/10)
of a share.
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3.08. Form of Warrant. The form of Warrant need not be changed due to
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any change pursuant to this article, and Warrants issued after a change may
state the same Warrant Price and the same number of shares as is stated in the
Warrants initially issued pursuant hereto. However, at any time in its sole
discretion, the Company may make any change in the form of Warrant that it may
deem appropriate and that does not affect the substance of the Warrants. Any
Warrant subsequently issued and countersigned, whether in exchange or
substitution for an outstanding Warrant or otherwise, may be in the form as so
changed.
Article IV
Other Provisions Relating to Rights of Holders of Warrants
4.01. No Rights as Stockholder Conferred by Warrants. A Warrant does
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not entitle its holder to any of the rights of a stockholder of the Company.
4.02. Lost, Stolen, Mutilated or Destroyed Warrants. If any Warrant is
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lost, stolen, mutilated or destroyed, the Company and the Warrant Agent may
issue a new Warrant of like denomination, tenor and date as the Warrant so lost,
stolen, mutilated or destroyed. Any such issuance of a new Warrant shall be on
whatever terms and conditions with respect to indemnity or otherwise that the
Company and Warrant Agent may in their sole discretion impose (which shall, in
the case of a mutilated Warrant, include the surrender of the Warrant). Any new
Warrant shall constitute an original contractual obligation of the Company,
regardless of whether the allegedly lost, stolen, mutilated or destroyed Warrant
is at any time enforceable by anyone.
4.03. Reservation of Common Shares. The Company shall at all times
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reserve and keep available the number of its authorized but unissued Common
Shares which is sufficient to permit the exercise in full of all outstanding
Warrants. If at any time the number of authorized but unissued Common Shares is
not sufficient for these purposes, the Company shall take such corporate action
as, in the opinion of counsel, may be necessary to increase its authorized but
unissued shares to the number of shares sufficient for these purposes. The
Warrants, and the Common Shares issuable upon exercise of the Warrants, have
been registered under the Securities Act of 1933, as amended.
Article V
Ownership and Transfer of Warrants
5.01. Ownership of Warrants. Warrants issued pursuant to this
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Agreement shall be treated as owned only by the holder of record as determined
by the Warrant Agent.
5.02. Transfer of Warrants. After countersignature by the Warrant
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Agent in accordance with the provisions of this Agreement, one or more Warrants
may be surrendered to the Warrant Agent for transfer and, upon their
cancellation, the Warrant Agent shall countersign and deliver in exchange one or
more new Warrants, as requested by the holder of the canceled Warrant or
Warrants, for purchase of the same aggregate number of shares as were evidenced
by or applicable
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to the Warrant or Warrants so canceled. The Company shall give notice to the
registered holders of the Warrants of any change in the address, or in the
designation, of the Warrant Agent.
Article VI
Warrant Agent
6.01. Resignation, Consolidation or Merger of Warrant Agent.
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(a) The Warrant Agent, or any successor, may resign its duties
and be discharged from all further duties and liabilities hereunder after giving
sixty (60) days notice in writing to the Company, except that shorter notice may
be given if the Company, in writing, accepts such shorter notice as sufficient.
If the office of Warrant Agent becomes vacant by resignation or incapacity to
act or otherwise, the Company shall appoint in writing a successor Warrant Agent
in place of the Warrant Agent.
(b) If the Company fails to make an appointment within sixty (60)
days after it has been notified in writing of a resignation or an incapacity by
the resigning or incapacitated Warrant Agent or by the holder of a Warrant (who
must, with any notice, submit the Warrant for inspection by the Company), then
the holder of any Warrant may apply to any court of competent jurisdiction for
the appointment of a successor Warrant Agent. Any successor Warrant Agent,
whether appointed by the Company or by a court, must be a corporation organized,
doing business and in good standing under the laws of the United States of
America or of any State, authorized under the laws under which it is governed to
exercise corporate trust powers, be subject to supervision or examination by
federal or state authorities, and have a combined capital and surplus of not
less than $5,000,000. The combined capital and surplus of any successor Warrant
Agent shall be deemed to be the combined capital and surplus set forth in the
most recent report of its condition published prior to its appointment, provided
that these reports are published at least annually pursuant to law or to the
requirements of a federal or state supervision or examining authority.
(c) After appointment, any successor Warrant Agent shall be
vested with all the authorities, powers, rights, immunities, duties and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent under this Agreement without any further act or deed.
However, if for any reason it becomes necessary or appropriate, the predecessor
Warrant Agent shall execute and deliver, at the Company's expense, an instrument
transferring to a successor Warrant Agent all the authority, powers, rights,
immunities, duties and obligations of a Warrant Agent hereunder. Not later than
the effective date of any appointment the Company shall give notice of the
appointment to the predecessor Warrant Agent to each transfer agent for its
Common Shares and to the registered holders of the Warrants. Failure to give
notice, or any defect in a notice, shall not affect the validity of the
appointment of a successor Warrant Agent.
(d) Any corporation into which the Warrant Agent may be merged or
with which it may be consolidated or any corporation resulting from any merger
or consolidation to which the
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Warrant Agent is a party shall be the successor Warrant Agent under this
Agreement without any further act.
6.02. Fees and Expenses of Warrant Agent. The Company shall (a) pay
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the Warrant Agent reasonable remuneration for its services as Warrant Agent
hereunder and reimburse the Warrant Agent upon demand for all expenditures that
it may reasonably incur in the execution of its duties hereunder, for example
and not by way of limitation, including the cost of legal counsel utilized by
Warrant Agent pursuant to Section 6.03(a) hereof; and (b) perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all further and other acts, instruments and assurances that reasonably
may be required by the Warrant Agent to carry out or perform this Agreement.
6.03. Additional Provisions.
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(a) The Warrant Agent may consult with legal counsel (who may be
legal counsel for the Company) and the opinion of legal counsel shall be full
and complete authorization and protection to the Warrant Agent with respect to
any action taken or omitted by it in good faith and in accordance with the
opinion.
(b) Whenever in the performance of its duties under this
Agreement the Warrant Agent deems it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering any
action hereunder, the fact or matter (unless other evidence with respect thereto
is specifically prescribed in this Agreement) may be deemed to be conclusively
proved and established by a statement signed by the President or a Vice
President or the Treasurer or an Assistant Treasurer or the Controller or the
Secretary of the Company and delivered to the Warrant Agent. However, in its
discretion, the Warrant Agent may in lieu of a signed statement accept other
evidence of a fact or matter or may require further or additional evidence that
to it may seem reasonable.
(c) The Warrant Agent shall be liable hereunder only for its own
negligence or willful misconduct.
(d) The Warrant Agent shall not be liable for or by reason of any
of the statements of fact or recital contained in this Agreement or in the
Warrants (except its countersignature of the Warrants) or be required to verify
the statements or recitals, and all of these statements and recitals are and
shall be deemed to have been made only by the Company.
(e) The Warrant Agent shall not be responsible for (i) the
validity of this Agreement, (ii) the execution and delivery of this Agreement or
the validity and execution of any Warrants (except its countersignature or
execution of the Warrants), (iii) any breach by the Company of any covenant or
condition contained herein or in any Warrant, (iv) the making of any adjustment
required by Article III of this Agreement or (v) the manner, method or amount of
any adjustment or the ascertaining of the existence of facts that would require
any adjustment. The Warrant Agent also,
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by any act under or pursuant hereto, shall not be deemed to make any
representation or warranty as to the authorization or reservation of any Common
Shares to be issued pursuant hereto, as to any Warrant or as to whether, when
issued, Common Shares shall be duly and validly issued, fully paid and
nonassessable.
6.04. Acceptance of Agency. The Warrant Agent hereby accepts the
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agency established by this Agreement and agrees to perform this Agreement upon
the terms and conditions set forth herein. Among other things, the Warrant
Agent shall account promptly to the Company with respect to Warrants exercised
and concurrently pay to the Company all moneys received by it for the purchase
of Common Shares through the exercise of Warrants.
Article VII
Other Matters
7.01. Payment of Taxes. The Company shall from time to time promptly
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pay all taxes and charges that may be imposed upon the Company or the Warrant
Agent in connection with the issuance or delivery of Common Shares upon the
exercise of Warrants, but the Company shall not be required to pay any transfer
taxes or income taxes in connection with the Warrants or shares.
7.02. Modification of Agreement. Without the consent or concurrence of
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the holders of the Warrants, the Warrant Agent may by supplemental agreement or
otherwise concur with the Company in making any changes or corrections in this
Agreement that it is advised by counsel (who may be counsel for the Company) are
required to cure any ambiguity or to correct any defective or inconsistent
provision or clerical omission or mistake or manifest error contained herein.
7.03. Successors. All the covenants and provisions of this Agreement
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by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
7.04. Notices and Demands to Company and Warrant Agent. Any notice or
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demand authorized by this Agreement to be given or made by the Company, the
Warrant Agent or by the holder of any Warrant shall be sufficiently given or
made if sent by certified or registered mail, postage prepaid, addressed (until
another address is filed in writing), as follows:
To the Company: Ocean West Holding Corporation
00000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
To the Warrant Agent: Reliance Trust Company
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attn: _______________________
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7.05. Applicable Law. The validity, interpretation and performance of
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this Agreement and of the Warrants shall be governed by the laws of the State of
Delaware.
7.06. Persons Having Rights Under This Agreement. Nothing expressed in
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this Agreement and nothing that may be implied from any of the provisions hereof
is intended, or shall be construed, to confer upon, or give to, any person or
corporation other than the parties to this Agreement and the holders of the
Warrants any right, remedy or claim under or by reason of this Agreement or of
any covenant, conditions, stipulation, promise or agreement contained herein,
and all covenants, conditions, stipulations, promises and agreements contained
herein shall be for the sole and exclusive benefit of the parties hereto and
their respective successors and assigns and of the holders of the Warrants.
7.07. Examination of Agreement. A copy of this Agreement shall be
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available at all reasonable times at the office of the Warrant Agent for
inspection by the holder of any Warrant. The Warrant Agent may require the
holder seeking inspection to submit the Warrant for inspection by it.
7.08. Effect of Headings. The article and section headings in this
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Agreement are for convenience only and are not part of this Agreement and shall
not affect the interpretation hereof.
WITNESS the signatures of the parties to this Agreement as of the day first
above written.
Ocean West Holding Corporation
By:
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Title:
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Reliance Trust Company
By:
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Title:
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